PHA-Exchange> Trade and Health

[FCA Secretariat]

Dear PHAers

Though I don't want to overburden you with tobacco and FCTC related
information I did want to let you know about the work which the Framework
Convention Alliance has been doing in relation to trade.  As pointed out,
tobacco is a perfect issue with which to illustrate the way in which trade
has been used to restrict health efforts.  I know the documents below are a
bit long but please do try and have a look through them.  As noted you can
find them online if you want better copies.  If anyone is interested in
joining the FCTC campaign please do contact me.  Your help is needed!

Regards,
Belinda Hughes
Coordinator
Framework Convention Alliance
www.fctc.org

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1. Framework Convention Alliance's Statement on Trade-Related Language in
Guiding Principles 5 and 8 of the Chair’s Text
____________________________________________________________________________
________________________

Multinational corporations dominate the tobacco business.  Treaties that
govern trade, investment and intellectual property protection have a
profound effect on the practices of these companies and on the public health
of the nations in which they are active. Tobacco products uniquely harm
public health and the global economy, imposing enormous economic costs on
governments, consumers, and private employers,   and the liberalization of
trade in tobacco products stimulates tobacco consumption and harms public
health.     There is no reason that tobacco, a product that when used as
intended kills over half of its long-term users, should be treated like any
other consumer product.

Because of the uniquely harmful nature of tobacco products, it is necessary
to ensure that public health concerns take precedence over commercial
interests when the two are in conflict.  The Framework Convention on Tobacco
Control (FCTC) provides an opportunity for concerned nations to adopt
narrowly drawn rules to address the unique public health concerns raised by
liberalization of trade in tobacco products.  These product-specific rules
would operate as limited exceptions to the generally applicable
international rules promoting free trade in goods and services. This
approach follows a well-established practice of developing product-specific
trade rules to address other uniquely harmful or risky products.
International agreements are already in place to address specific concerns
around hundreds of products including small arms, landmines, other weapons,
narcotic drugs and psychotropic substances, ozone-depleting chemicals,
hazardous waste, genetically modified organisms, persistent organic
pollutants (POPs), and endangered species.  In the environmental field
alone, more than 20 multilateral treaties include trade-related provisions.

The current wording of Guiding Principle 5 is based on language in Article
XX (b) of the GATT and states that tobacco control measures should not
constitute a means of arbitrary or unjustifiable discrimination in
international trade. This continues to subject tobacco to the same trade
agreements and rules as any other product and places the burden of proof on
the public health community to prove that tobacco control measures are
justifiable and not arbitrary. In the case of tobacco, a product that causes
great harm, these conditions are unacceptable.

In order to ensure that tobacco control measures are not undermined by
actions taken pursuant to international trade agreements, it is particularly
important that Guiding Principle 5 be deleted and replaced by new provisions
such as the following:

The Parties agree to take all necessary measures to ensure that no person
acting on their behalf shall attempt to (a) remove, weaken, undermine or
otherwise interfere with tobacco control measures in force or under
consideration in another State or (b) promote tobacco product exports or
tobacco use in another State.

In the event of a conflict between this Convention or any of its Protocols
and any other international agreement, this Convention and its Protocols
shall prevail.

In the face of such a serious threat to human life and health, and light of
all that we know about the harms caused by tobacco and the effectiveness of
tobacco control measures, it is appropriate to take protective action based
on the best available evidence.  The public should not be left unprotected
during the often lengthy search for scientific certainty regarding the
efficacy of protective measures and related issues.  This precautionary
approach already is incorporated in numerous multilateral environmental
agreements, including the Rio Declaration on Environment and Development,
the Montreal Protocol on Substances that Deplete the Ozone Layer,  United
Nations Framework Convention on Climate Change,  the UN Conference on
Straddling Fish Stocks and Highly Migratory Fish Stocks,  the Cartagena
Protocol on Biosafety,  and others.  The FCTC should include the following
language to specifically provide for this approach:

“It is scientifically certain that tobacco causes many diseases that result
in needless disability and early death.    Lack of full scientific certainty
regarding the efficacy of specific tobacco control measures shall not be
used a reason for postponing measures to control tobacco or for challenging
such measures taken by other States.

The current language of Guiding Principle 8 states that the provisions of
the Convention should be recognized as minimum standards and Parties are
encouraged to implement measures beyond those required by the Convention.

It is vital that the FCTC be recognised as the international minimum
standard so that countries are not subject to trade challenges if they
implement stronger measures. This draft language should be strengthened to
state that Parties have the right and should be encourage to adopt measures
additional to those referred to in the FCTC and that those measures will not
be subject to trade challenges by other FCTC parties.

In order to ensure that tobacco control measures are not undermined by
actions taken pursuant to international trade agreements, it is particularly
important that Guiding Principle 8 be replaced by the following General
Provision:

The provisions of the Convention are minimum standards, and Parties are
encouraged and authorized to implement measures beyond those required by the
Convention.

Source: http://www.fctc.org/statementtrade.shtml

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1. Excert from Framework Convention Alliance comments on the Chair's Draft
of the FCTC
__________________________________________________________________________

Interrelation Between Tobacco-Control Measures, the FCTC and Trade
Agreements

Cigarettes kill half of their long-time users. Given the exceptionally
hazardous and addictive nature of tobacco products, the Framework Convention
Alliance believes that public health measures to deal with the tobacco
epidemic must take precedence over any commercial considerations. There
should be no question of a trade-off between human life and the commercial
interests of the tobacco industry. This view is based on three premises:

o Tobacco products uniquely harm public health and the global economy,
imposing enormous economic costs on governments, consumers and private
employers. (2)
o Liberalization of trade in tobacco products stimulates tobacco consumption
and harms public health; (3)
o There is ample precedent in many other international agreements for
provisions to restrict trade in particularly harmful products such as
tobacco, for example, special rules were developed for ozone-depleting
chemicals and persistent organic pollutants.

Currently, Guiding Principle 5 of the Chair's Text states that "Tobacco
control measures should not constitute a means of arbitrary or unjustifiable
discrimination in international trade." This language, which is borrowed
from Article XX of GATT, creates serious problems for tobacco control and
should be deleted. First, none of the relevant terms are defined, e.g. it is
not clear who bears the burden of proof or what level of scrutiny will be
applied to a challenged tobacco control measure. In the absence of
clarifying language, this provision could be interpreted, as it is has been
under the GATT and the WTO, as nullifying national health and safety
measures. Furthermore, it imposes an inordinately high burden of proof on
the country defending a tobacco control measure, rather than on the Party
challenging it. We do not believe that the validity of national
tobacco-control measures should be decided by trade tribunals. Tobacco
multinationals have a long history of using trade law as a tool to thwart
tobacco-control policies -- several Asian countries (notably Thailand) were
forced in the late 1980s to open their tobacco markets to foreign companies
as a result of trade pressures, while more recently, Japan Tobacco has
threatened to challenge the European Union from banning the terms "light"
and "mild" from cigarette packaging.

The FCTC is a very specific treaty designed to address unique health
concerns about a single class of products. It is possible that specific
provisions of the FCTC may be found to conflict with broadly applicable
provisions of international trade or other agreements. In such cases, the
agreements of broad applicability should be considered to create a general
rule, and the FCTC should be considered to create a specific exception. This
is a fundamental rule of construction in treaty interpretation. Therefore
the FCTC should include language specifying that in the event of a conflict
between the Convention or any of its Protocols and the application of
another international agreement to tobacco, the FCTC shall take precedence.

Historically, the tobacco industry has exploited any real or perceived
uncertainty about the nature and magnitude of risk posed by active smoking,
passive smoking, tobacco advertising, addiction, additives, and a host of
other issues. The industry has demanded that unanimity of scientific opinion
be achieved both about these issues and about the effectiveness of proposed
remedies, before any protective action is taken. This approach has proven
devastating to public health and makes no sense in light of the scientific
certainty that active and passive smoking cause needless suffering and death
and that measures to reduce tobacco use are justified. It is more
appropriate to take an approach opposite to that advocated by the tobacco
industry by taking protective action to reduce tobacco use. The FCTC should
include language stating that lack of full scientific certainty regarding
the impacts of tobacco or the efficacy of specific tobacco control measures
should not be used as a reason for postponing such measures or for
challenging tobacco control measures taken by other States.

Endnotes:
2. By the year 2030, 10 million people will die each year from tobacco use,
70 percent of them in developing nations. Using conservative assumptions and
data from the 1990s, a World Bank economist concluded that each 1,000 tons
of tobacco smoked produces a net global loss of US$27 million, and that
tobacco produces a total annual net loss to the world economy of about $200
billion (see Barnum, H. "The Economic Burden of Global Trade in Tobacco,"
Tobacco Control, 1994: 3; 358-361).
3. See Taylor A, Chaloupka FJ, Guidon E, Corbett M. "The Impact of Trade
Liberalization on Tobacco Consumption," in Jha P, Chaloupka FJ, eds.,
Tobacco Control in Developing Countries (Oxford: Oxford University Press,
2000). Chaloupka and Laixuthai constructed a fixed-effect model to measure
the relationship between cigarette consumption and a country's openness to
cigarette trade, focusing on the four nations forced by U.S. trade action to
open their market to U.S cigarettes (Japan, South Korea, Taiwan and
Thailand). The study found an overall increase in cigarette demand of about
10 percent attributable solely to trade liberalization. Chaloupka FJ,
Laixunthai A. "U.S. Trade Policy and Cigarette Smoking in Asia," National
Bureau of Economic Research Working paper NO. 5543, 1996.

Source: http://www.fctc.org/FCTCfca.shtml

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3. Both of these documents have been endoresed by the following
organisations:
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African Centre for Empowerment and Gender Advocacy (Kenya)
Association pour la Defence des Droits des Consommateurs (Chad)
Association Togolaise pour la Defense du Consummateur / Togolaise Consumers
Association (ASTODEC) (Togo)
Association VISA - Vle Sante (Life-Health)
Bons Templiers Congolais
Centre for Tobacco Education and Development (CTFED) (Kenya)
Consumers Association of Malawi
Consumer Watch (Kenya)
Croix Bleue de la Republique Democratique Du Congo
Environmental Rights Action (Nigeria)
Environmental Action Network (Uganda)
National Council Against Smoking (South Africa)
Mouvement National des Consommateurs (MNC)
Mutuelle Sociale de Sante (MSS) (Cameroon)
Senegal Anti-Tobacco Movement
Social Needs Network (Kenya)
SOS Tabagisme (Mali)
Soul City (South Africa)
Sudan Committee for the Control of Tobacco Consumption
Tanzania Public Health Association
Toombak and Smoking Research Centre (Sudan)
Togolese Association of Campaign Against Alcoholism and other Drugs /
Association Togolaise De Lutte Contre L’Alcoolisme et les Autres
Toxicomanies (ATLAT)
Uganda Consumers Protection Association
Zuna Women's Operation Green (Zimbabwe)
Action on Smoking and Health (USA)
Advocacy Institute (USA)
American Cancer Society
American Heart Association
American Lung Association
American Public Health Association
Campaign for Tobacco Free Kids (USA)
Canadian Cancer Society
Chinese Progressive Association (USA)
Essential Action (USA)
Heart and Stroke Foundation (Canada)
INFACT (USA)
Non-Smokers' Rights Association (Canada)
Physicians for a Smoke Free Canada
Robert Wood Johnson Foundation (USA)
San Francisco Tobacco Free Coalition (USA)
Society for Research on Nicotine and Tobacco (USA)
Tobacco Free Coalition (USA)
Tobacco Law Project (USA)
Tobacco-Free Las Cruces Coalition (USA)
Transnational Resources and Action Centre (USA)
Women's Environment and Development Organisation
Argentine Union Against Tobacco
Heart Foundation of Barbados
Grupo Universitario Anti-Tobaquico (Uruguay)
InterAmerican Heart Foundation
REDEH-CEMINA - The Network in Defense of Humankind (Brazil)
Uruguay Antitobacco Comission
Hong Kong Council on Smoking and Health
Japan Association Against Tobacco
Japan Coalition on a Smokefree Environment
Japan Medical-Dental Association on Tobacco Control
Korean Association on Smoking and Health (KASH)
Action on Smoking and Health (Australia)
Action on Smoking and Health (New Zealand)
Apärangi Tautoko Auahi Kore (Maori Smokefree Coalition)
Campaign Against Foreign Control of Aotearoa (NZ)
Cancer Foundation of Western Australia
National Heart Foundation (Australia)
New South Wales Cancer Council (Australia)
Smokefree Coalition (New Zealand)
Action Council Against Tobacco (India)
Alcohol and Drug Information Centre (Sri Lanka)
Association for Consumers Action on Safety and Health (ACASH) (India)
Bangadesh Anti-Tobacco Alliance
Cancer Institute (India)
Community Health Cell (India)
Consumer Education and Research Centre (India)
Forum for Development Association (Bangladesh)
Janak Memorial Services Centre (Nepal)
Network for Consumer Protection (Pakistan)
Pakistan Society for Cancer Prevention
School of Preventative Oncology, Patna (India)
Action on Smoking and Health Foundation (Thailand)
Adventist Development and Relief Agency (Cambodia)
Consumers Association of Penang (Malaysia)
Indonesian Association of Pulmonologist
Indonesian Smoking Control Foundation (LM 3)
Philippine Cancer Society
Public Health Initiative (Philippines)
Southeast Asian Tobacco Control Alliance
Vietnam Standard and Consumer Association
Adventist Development & Relief Agency (ADRA) Mongolia
Aer Pur Romania
Alcohol and Drug Information Centre (Ukraine)
Czech Committee of European Medical Association Smoking OR Health
Georgian Medical Association
Georgian National Counter Tobacco Center
Health 21 Hungarian Foundation
Hungarian National Tobacco Control Forum
Working Group or Prevention and Treatment of Tobacco Dependence, Czech
Medical Association
Action on Smoking and Health (Ireland)
Action on Smoking and Health (London)
Action on Smoking and Health (Scotland)
Asociacion Espanola contra el Cancer
Association of the European Cancer Leagues
British Medical Association
British Medical Association - Tobacco Control Project
Cancer Society of Finland
CNCT (French Committee for Smoking Prevention)
Conselho de Prevencao do Tabagisme (Portugal)
European Medical Association on Smoking and Health
European Network for Smoking Prevention
European Respiratory Society
European Union of Non-Smokers
German Cancer Research Centre
German Coalition Against Smoking
German Coalition Against Smoking
German Medical Action Group Smoking and Health
German Medical Association
Hellenic Cancer Society
Spanish Association Against Cancer
Israel Cancer Association
Saudi Charitable Anti-Smoking Society
Turkish Committee on Tobacco or Health
Consumers International Regional Office for Asia and the Pacific (CI-ROAP)
FDI World Dental Federation
INGCAT
International Council of Women
International Agency on Tobacco or Health
International Network of Women Against Tobacco
IOGT Regional Council for South and South East Asia
International Union Against Tuberculosis and Lung Disease
Medical Women's International Association
PATH (Canada)
Public Services International
UICC Globalink
UICC International Union Against Cancer
World Federation of Public Health Associations
World Vision International

An updated membership list can be found at: http://www.fctc.org/mlist.shtml

For further information on the Framework Convention on Tobacco Control and
the Framework Convention Alliance please see: www.fctc.org

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